Shrader v. Roberts

• Decision Date: 13 October 1923
• Docket Number: (No. 8891.)
• Citation: 255 S.W. 469
• Parties: SHRADER v. ROBERTS.
• Court: Texas Court of Appeals

255 S.W. 469

SHRADER v. ROBERTS.

(No. 8891.)

Court of Civil Appeals of Texas. Dallas.

October 13, 1923.

Rehearing Denied November 10, 1923.

Appeal from District Court, Dallas County; Royal R. Watkins, Judge.

Suit by Modena Roberts against V. J. Shrader. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A. H. Mount, of Dallas, for appellant.

Miller & Godfrey and H. M. Kisten, all of Dallas, for appellee.

HAMILTON, J.

This suit was instituted by appellee for the recovery of damages alleged to have been inflicted as the result of a collision between an automobile negligently driven by appellant's servant and another in which the appellee was riding at the time. The allegations are:

"That by reason of the carelessness, recklessness, and negligence of the defendant, his agent, servant, and employé, said automobile was suddenly, unexpectedly, and without any warning * * * moved backward * * * at a high and excessive rate of speed * * * until the rear of said automobile came violently in contact with plaintiff and with the north side of the truck upon which plaintiff was riding."

Allegations were made to the effect that the automobile at the time driven by appellant's servant was not equipped with any device to give warning of its approach, and that the absence of such device constituted negligence as a matter of law, because the operation of an automobile without being equipped with such instrumentalities to give warning of its approach was in violation of the statutory law of this state.

In answer to the petition containing these allegations, and others adequate to state a cause of action against appellant for the injury suffered by appellee, appellant filed a general demurrer, certain special exceptions, a general denial and a special answer, which need not be stated.

Appellant's first proposition is that the burden was upon appellee to establish that the driver of the car, who was proved at the time to be an employé of appellant, was acting within the scope of the latter's employment when he inflicted the injury.

The proof showed, and it is admitted, that the automobile belonged to appellant and that the driver was regularly employed by him to drive it. Appellant was engaged in the business of operating an interurban automobile line between the city of Dallas and the city of Terrell, and the servant who was driving his car at the time of the collision and accident daily operated it between a certain terminal point in Dallas and a certain terminal point in Terrell. Proof of the ownership of the automobile having been established, and proof of the driver's employment by the owner also having been established, it seems that by presumption of fact, in the absence of proof to the contrary, it may be inferred that the driver was acting within the scope of his employment. Studebaker Co. v. Kitts (Tex. Civ. App.) 152 S. W. 467; Gordon v. Texas & Pacific Merc. & Mfg. Co. (Tex. Civ. App.) 190 S. W. 751; Lang Floral & Nursery Co. v. Sheridan (Tex. Civ. App.) 245 S. W. 472; Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406, Ann. Cas. 1916D, 1161; Huddy on Automobiles (5th Ed.) pars. 671-673.

In the light of the foregoing authorities we are inclined to the view that further proof of the employer's liability for the injury was not required to establish a prima facie case. Accordingly, we are of the opinion that the court did not err in refusing to grant appellant's motion for an instructed verdict at the conclusion of appellee's proof establishing the fact that...